Consorti v. Owens-Corning Fiberglas Corp.

• Decision Date: 24 October 1995
• Docket Number: OWENS-CORNING
• Citation: 634 N.Y.S.2d 18,86 N.Y.2d 449,657 N.E.2d 1301
• Parties: , 657 N.E.2d 1301, 64 USLW 2304, Prod.Liab.Rep. (CCH) P 14,415 Frances CONSORTI, Individually and as Executrix of John Consorti, Deceased, Plaintiff, v.FIBERGLAS CORP., Defendant.
• Court: New York Court of Appeals Court of Appeals

Page 18

634 N.Y.S.2d 18

86 N.Y.2d 449, 657 N.E.2d 1301, 64

USLW 2304,

Prod.Liab.Rep. (CCH) P 14,415

Frances CONSORTI, Individually and as Executrix of John Consorti, Deceased, Plaintiff, v. OWENS-CORNING FIBERGLAS CORP., Defendant.

Court of Appeals of New York.

Oct. 24, 1995.

[86 N.Y.2d 450] Siff Rosen, P.C., New York City (William G. Ballaine, Lisa S. Rabinowitz and Phyllis M. Wrann, of counsel), for defendant.

Levy Phillips & Konigsberg, L.L.P., New York City (Steven J. Phillips, Alani Golanski, Moshe Maimon and Stephenie Lannigan, of counsel), for plaintiff.

OPINION OF THE COURT

LEVINE, Judge.

Under settled New York law, because consortium represents each marital partner's interest in the continuance of the marital relationship as it existed at the inception of the marriage, a loss of consortium cause of action by the spouse of an injured person "does not lie if the alleged tortious conduct and resultant injuries occurred prior to the marriage" (Anderson v. Lilly & Co., 79 N.Y.2d 797, 798, 580 N.Y.S.2d 168, 588 N.E.2d 66). The United States Court of Appeals for the Second Circuit has certified a question to us regarding the application of that principle to a case where a toxic substance was introduced into the injured person's body before the marriage, but did not bring about the onset of a particular disease until many years after the marital relationship began.

As related in the Second Circuit's decision (Consorti v. Owens-Corning Fiberglas Corp., 45 F.3d 48, 49), plaintiff's decedent, John Consorti, was continuously exposed to asbestos which he inhaled during the course of his employment between 1960 and 1970. He and plaintiff Frances Consorti married in 1976. Mr. Consorti was diagnosed as having plural mesothelioma, an incurable cancer of the lining of the lungs, in 1992. The Consortis commenced suit in the Federal District Court, Southern District of New York, against defendant, the manufacturer of the asbestos. They introduced at the trial, which had been consolidated with several other asbestos exposure cases, essentially uncontested evidence that mesothelioma is caused by the inhalation of asbestos, but that the disease does not develop until 25-30 years after exposure. Defendant conceded that Mr. Consorti did not have mesothelioma when he married. The question certified to us is "whether a cause of action lies for loss of consortium where, prior to the marriage, the plaintiff's spouse was exposed to, and ingested, a substance that remained in his body and eventually caused illness, but the illness did not occur until after the marriage" (id., at 49). We answer the certified question in the negative.

Plaintiff's contrary argument is that the injury to her spouse giving rise to her loss of consortium claim was his mesothelioma and that the time when that injury occurred was a factual question, resolved in her favor as happening after the marriage and, therefore, beyond the power of this Court to review. We disagree.

The issue of date of injury in toxic substance exposure cases in the New York courts has most often been presented in the context of the application of the Statute of Limitations. Much the same considerations apply in determining the date of injury for purposes of a loss of consortium claim, and neither party here disputes that the holdings of those cases are the controlling precedents for the disposition of the instant case. Concededly, as noted by the Second Circuit, there is language in our earlier toxic substance exposure decisions which may be read as basing the operative date of injury on " 'when there is some actual deterioration of a plaintiff's bodily structure' " (id., at 50, quoting Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 217, 237 N.Y.S.2d 714, 188 N.E.2d 142, remittitur amended 12 N.Y.2d 1073, 239 N.Y.S.2d 896, 190 N.E.2d 253, cert. denied 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032). Nonetheless, the true holdings of these early cases (and the results reached) point to the rejection of a fact-based date of medical injury test. That rejection was made for practical and policy reasons articulated in the developing case law, that is, the need to provide manufacturers, employers and other economic actors who are potential defendants with a degree of certainty or predictability in assessing the risk of liability and to avoid stale claims which often turn on questions of credibility or disputed medical judgments. Therefore, a bright line, readily verifiable rule was adopted in which, as a matter of law, the tortious injury is deemed to have occurred upon the introduction of the toxic substance into the body. Thus, in Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824, rearg denied 271 N.Y. 531, 2 N.E.2d 680, a case where the claim arose out of plaintiff's inhalation of silicone dust, subsequently resulting in his contracting pneumoconiosis, this Court rejected plaintiff's claim that the injury giving rise to his cause of action occurred "not at the time he inhaled the dust * * * but at the time when the dust, so inhaled, resulted in a disease of the lungs and that date, it is said, can be determined only by medical testimony " (id., at 300, 200 N.E. 824 [emphasis supplied]. Instead, the Court in Schmidt held that

"[t]he injury to the plaintiff was complete when the alleged negligence of the defendant caused the plaintiff to inhale the deleterious dust. For that injury, including all resulting damages the defendant was then liable. The disease of the lungs was a consequence of that injury. Its result might be delayed or, perhaps, even by good fortune averted; nevertheless, the disease resulted naturally, if not inevitably, from a condition created in the plaintiff's body through the defendant's alleged wrong" (id., at 301, 200 N.E. 824 [emphasis supplied].

In Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, supra, this Court, albeit not without some reluctance (see, id., at 217-218, 237 N.Y.S.2d 714, 188 N.E.2d 142), adhered to Schmidt in holding, as a matter of law, that the injury to the plaintiff occurred in 1944, when a chemical was injected into his sinuses to make them perceptible in X rays, rather than 13 years later when a consequential cancer of the eye was detected. In Thornton v. Roosevelt Hosp., 47 N.Y.2d 780, 417 N.Y.S.2d 920, 391 N.E.2d 1002, a differently constituted Court was asked to revisit and overrule the Schmidt doctrine in a case also involving the injection of a dye into the sinuses for X-ray purposes which subsequently caused cancer. The Court was urged to adopt, as one alternative test for the time of occurrence of tortious injury, "the date when, regardless of whether [the plaintiff] then became aware of it, the injury process first started to work on her body" (47 N.Y.2d at 783, 417 N.Y.S.2d...